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2023 DIGILAW 2810 (ALL)

Munisha Devi v. Kalyan Singh

2023-12-13

SARAL SRIVASTAVA

body2023
JUDGMENT Saral Srivastava, J. Heard learned counsel for the claimants/appellants and Sri Radhey Shyam, learned counsel for the respondents. 2. The present appeal has been preferred by the claimants/appellant against the award dated 18.03.2005 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.8, Etawah whereby he has rejected the claim petition of the claimants/appellants. 3. One Subhash Chandra was driver on the Truck No.D.L-1-GB0979 and on the instruction of his employer, he was taking the truck and while in order to save someone, he lost control over the truck and truck overturned. In the said accident, Subhash Chandra came under the truck and suffered injuries and died. The dependants of Subhash Chandra instituted the claim petition under Section 163A of the Motor Vehicles Act. 4. The Tribunal framed several issues. However, on the issue of occurrence of accident, Tribunal returned a finding in favour of claimants/appellants. The Tribunal found that the accident was the result of rash and negligent driving of deceased-driver, therefore, Tribunal did not award any compensation to the claimants/appellants. 5. On the issue of driving licence and the insurance policy, Tribunal found that the deceased was having a valid driving licence at the time of accident and offending vehicle was duly insured on the date of the accident. 6. Challenging the award, learned counsel for the claimants/appellants has contended that it is not in dispute that deceased was employed as driver on offending truck, and accident had occurred during the course of employment. It is contended that it is the choice of the claimants to claim compensation in case of death of driver either in the court of Motor Accident Claims Tribunal or before the Commissioner under the Workmen Compensation Act. It is further submitted that in the present case, claimants/appellants preferred claim petition before the Motor Accident Claims Tribunal, and therefore, the question of negligence is not to be seen in view of the fact that driver of the truck is statutorily covered under the insurance policy, and once it is established that deceased was employed as driver on the truck and had died during the course of employment due to the injuries suffered by him in the accident, the compensation cannot be denied to the claimants/appellants. Thus, it is contended that Tribunal has erroneously held that since the deceased himself was negligent in the accident, therefore, claimants/appellants are not entitled to compensation. 7. Thus, it is contended that Tribunal has erroneously held that since the deceased himself was negligent in the accident, therefore, claimants/appellants are not entitled to compensation. 7. It is further contended that in view of the fact that the driving licence of the driver of the truck was valid and further offending vehicle was insured with the insurance company, therefore, the liability to pay compensation is upon the insurance company, and this Court may not remand the matter for quantification of compensation rather this Court being an Appellate Court can determine the quantification of compensation. 8. Per contra, learned counsel for the respondents would contend that it is not in dispute that deceased was driving the truck and truck overturned and deceased came under the truck and on account of the injuries suffered by him in the accident, he died. It is submitted that the accident was the result of sole negligence of deceased-driver and in such view of the fact, the Tribunal has rightly held that since the accident had occurred due to rash and negligent driving of deceased himself, therefore, claimants/appellants cannot be compensated for the negligence of deceased in the accident. It is further contended that it is a case where claimants/appellants failed to make out any case inviting interference by this Court in its appellate jurisdiction and since the appeal is devoid of merit, therefore, it deserves to be dismissed. 9. I have considered the rival submissions of the parties and perused the record. 10. It is not disputed that deceased was driving the truck at the time of accident. The record reveals that in order to save someone, deceased-driver lost control over the truck due to which, the truck overturned and deceased came under the truck and suffered injuries which was the cause of his death. It is also not disputed that deceased was employed as driver on the truck. 11. Under Section 167 of the Motor Vehicles Act, it is the choice of the claimants to claim compensation either from the court of Motor Accident Claims Tribunal or before the Commissioner under the Workmen Compensation Act for the death of an employee in the accident who died during the course of employment. 12. 11. Under Section 167 of the Motor Vehicles Act, it is the choice of the claimants to claim compensation either from the court of Motor Accident Claims Tribunal or before the Commissioner under the Workmen Compensation Act for the death of an employee in the accident who died during the course of employment. 12. At this stage, it is relevant to have a glance at Section 147(1) provision (i) of the Motor Vehicles Act, 1988 (prior to substitution by Act 32 of 2019) which is as under:- "147. Requirement of policies and limits of liability.-(1)... Provided that a policy shall not be required- i. to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee- a. engaged in driving the vehicle, or b. if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or c. if it is a goods carriage, being carried in the vehicle, or ii. to cover any contractual liability. Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place." 13. Thus, proviso (i) of section 147(1) of the Motor Vehicles Act, 1988 clearly stipulates that the driver of the truck is statutorily covered under the insurance policy in view of proviso (i) of Section 147(1) of the Motor Vehicles Act and the negligence of driver in such cases is not to be seen. 14. Once, claimants established that deceased was employed as driver on the offending truck, dependants of the deceased are entitled to the compensation. 14. Once, claimants established that deceased was employed as driver on the offending truck, dependants of the deceased are entitled to the compensation. In such view of the fact, this Court is of the view that Tribunal has committed manifest illegality in denying compensation to the claimants/appellants on the ground that deceased himself was negligent in the accident. 15. Normally, this Court would have remanded the matter to the Tribunal to assess the compensation, but considering the fact that the accident had taken place on 01.06.2002 and claim petition has been decided in the year 2005 and claimants have not been paid even a single penny for the loss of income suffered by them on account of the death of sole bread earner i.e. deceased, therefore, this Court proceeds to determine the quantification of compensation. 16. Now, the question arises as to what amount of compensation to be granted. The claim petition has been instituted under Section 163A of the Motor Vehicles Act, therefore, compensation is to be computed as per the scheduled framed under Section 163A of the Motor Vehicles Act. 17. In the instant case, the claim petition was filed in the year 2002 and more than 21 years have passed claimants/appellants have not yet got even a single penny for the loss of income suffered by them for the death of sole bread earner of the family i.e. deceased. 18. Considering the aforesaid fact and hardship faced by the claimants/appellants, this Court finds it appropriate that claimant/appellants may be awarded a lump-sum Rs. 5,00,000/- in view of the judgement of Apex Court in the case of Ram Murti and Others v. Punjab State Electricity Board, 2022 (4) T.A.C. 738 (S.C.) 19. It would be apt to reproduce paragraphs 6 to 8 of the judgement of Apex Court in the case of Ram Murti (supra):- "6. There is no cogent basis for this Court to entertain the challenge against the findings of fact which have been recorded concurrently by the Tribunal and by the High Court while dismissing the claim under section 166 of the Motor Vehicles Act, 1988. 7. The provisions of Section 140 which formed a part of Chapter 10 of the Motor Vehicles Act, 1988 were omitted by Act 32 of 2019. 7. The provisions of Section 140 which formed a part of Chapter 10 of the Motor Vehicles Act, 1988 were omitted by Act 32 of 2019. Simultaneously, Chapter 11 was substituted of which Section 164 provides for payment of compensation in the case of death in the amount of Rs. 5 lakhs and in the case of grievous hurt of Rs. 2.5 lakhs. 8. We are inclined to give the appellants the benefit of the beneficial provisions which have been enacted by Parliament. Hence, in modification of the order of the High Court, we direct that the appellants shall be entitled to an amount of Rs. 5 lakhs as compensation. However, if the amount of Rs. 50,000 which has been awarded by the High Court has already been paid over, the balance (or the entirety of 5 lakhs if no amount has been paid) shall be paid over to the appellants by 30.11.2022." 20. Accordingly, this Court awards Rs. 5,00,000/- in lump-sum to the claimants/appellants. Out of the said amount, all the claimants are awarded equal amount i.e. 1,25,000/-. It is further provided that enhanced amount of compensation shall carry 7% simple interest from the date of institution of claim petition till the amount is deposited. 21. Thus, for the reasons given above, the appeal is partly allowed and the award of the Tribunal is modified to the extent indicated above. The insurance company is directed to pay the awarded amount of compensation to the claimants/appellants within a period of three months from the date of production of a certified copy of this order. There shall be no order as to costs.